In Jensen v. Bevard, 215 Or App 215, 168 P3d 1209 (2007), mother
appealed a trial court judgment awarding sole custody of mother's son, D, to D's
grandmother and awarding mother limited parenting time. On September 26, 2007, we
issued our decision holding that, at the time grandmother filed a petition for custody of D
under ORS 109.119, she did not have the child-parent relationship that is a prerequisite to
receiving custody under that statute. Accordingly, we reversed and remanded the trial
court's judgment.

Since our decision issued, mother has filed a petition for reconsideration
and grandmother has filed a motion to vacate the appellate judgment and dismiss the
appeal. In grandmother's motion, she argues that the appeal became moot before our
decision issued because the trial court issued a supplemental judgment on August 14,
2007--one month before our decision. The supplemental judgment continued the custody
arrangement that had been in place, with grandmother having sole legal and physical
custody of D, but it reduced mother's parenting time and imposed additional restrictions
on that parenting time.

We address grandmother's motion first because, if granted, it would be
dispositive. A case is moot if it is otherwise justiciable, but a court's decision will no
longer have a practical effect on the rights of the parties. Brumnett v. PSRB, 315 Or 402,
406, 848 P2d 1194 (1993). Grandmother argues that, because the supplemental judgment
supersedes the general judgment, our decision addresses a merely abstract question and is
moot. We disagree.

The trial court issued the supplemental judgment in response to
grandmother's motion to modify the parenting plan. Although we do not have a full
record of those proceedings, it appears that the only issues that the court addressed were
whether mother's parenting time should be reduced and whether her parenting time should
be subject to further restrictions. However, the trial court's supplemental judgment was
based on its earlier decision determining that grandmother had a child-parent relationship
with D and awarding her custody. Therefore, the supplemental judgment did not
supersede the general judgment; it merely supplemented it. The practical effect of our
reversal of the general judgment is a reversal of the supplemental judgment as well.
Accordingly, our decision in this case is not moot. Grandmother's motion to vacate the
appellate judgment and dismiss the appeal is denied.

Although mother prevailed on appeal, she has filed a petition for
reconsideration requesting that we clarify our previous opinion to provide further
instruction to the trial court and the parties. Specifically, she requests that our opinion
state that remand is for (1) entry of a judgment granting mother physical and legal custody
of D; (2) development of a plan giving grandmother reasonable parenting time; and (3) a
hearing as to mother's entitlement to attorney fees for the circuit court proceedings.
Additionally, mother requests us to state that grandmother cannot file a new petition for
custody under ORS 109.119 using the time that grandmother had custody of D as a result
of the reversed trial court judgment to establish a child-parent relationship.

Additionally, we are not aware of any authority authorizing us to order the
trial court to hold a hearing to determine whether mother is entitled to attorney fees. If
mother would like to receive attorney fees, she can petition the trial court for attorney fees
on remand.

Finally, we cannot grant mother's request to state that grandmother cannot
file a new petition seeking to establish that she has a child-parent relationship with D
based on the time she had custody of him as a result of the reversed judgment. Because
grandmother has not yet filed a new petition seeking that outcome, the controversy (if
any) is not ripe.

Motion to vacate appellate judgment and dismiss appeal denied;
reconsideration allowed; former opinion clarified and adhered to as clarified.

1. In Dennis and Dennis, 199 Or App 90, 104, 110 P3d 607 (2005), we reversed an
award of custody to a grandmother, awarding custody to the father instead. To allow the children
to transition back into the father's home, we stated, "[W]e conclude that father is entitled to
custody of his children after a period of transition that is designed to ensure that the children's
needs are best met."

Similarly, in Strome and Strome, 201 Or App 625, 639, 120 P3d 499, rev den, 339
Or 701 (2005), in which we also reversed a custody award to a grandmother, we stated,

"While we recognize that appellate courts necessarily must
review a record at a given point in time, we also understand that
five years have passed since this case was decided in the trial court.
During the pendency of appeal, the children have lived with their
grandmother. Under these circumstances, we conclude that father
is entitled to custody after a period of transition designed to ensure
that the children's needs are best met. Accordingly, we remand the
case to the trial court to establish an appropriate plan to transition
the children to father's custody that includes ample contact between
the children and grandmother."

2. In mother's petition, she cites Dewolfe v. Miller, 208 Or App 726, 748, 145 P3d
338 (2006), in which we "[r]eversed and remanded for entry of judgment granting legal and
physical custody of child to father and for development of [a] plan giving mother reasonable
parenting time." In Dewolfe, as opposed to this case, the party who lost custody was a mother;
therefore, unlike a grandmother, she was authorized to receive parenting time without making a
statutory showing that she qualified for it.